This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2011AP2051

Cir. Ct.
No.1996CF961035A

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT I

State of Wisconsin,

Plaintiff-Respondent,

v.

Douglas H. Stream,

Defendant-Appellant.

APPEAL
from an order of the circuit court for MilwaukeeCounty:jeffrey
a. conen, Judge.Affirmed.

Before Curley, P.J., Fine and Brennan, JJ.

¶1FINE, J. In 1996, a jury found Douglas H.
Stream guilty of first-degree intentional homicide as party to a crime.See Wis. Stat. §§ 940.01(1) & 939.05
(1997–1998).We affirmed Stream’s
conviction on direct appeal.See State
v. Stream, No. 1997AP318-CR, unpublished slip op. (WI App Feb. 17,
1998).In June of 2011, Stream filed a Wis. Stat. § 974.06 motion claiming that
his trial and postconviction lawyer gave him constitutionally deficient
representation.See State ex rel. Rothering v.
McCaughtry, 205 Wis.
2d 675, 682, 556 N.W.2d 136, 139 (Ct. App. 1996) (ineffective assistance may be
a sufficient reason for not having previously raised issues).The circuit court denied the motion without
holding a hearing under State v. Machner, 92 Wis. 2d 797, 285 N.W.2d
905 (Ct. App. 1979) (hearing to determine whether lawyer gave a defendant
ineffective assistance).Stream claims
that his trial lawyer was ineffective because the lawyer: (1) did not object during the pre-trial
hearing to determine whether he was fully advised of his rights mandated by Miranda
v. Arizona,384 U.S. 436 (1966), and whether his statements to the police
were voluntary, seeState
ex rel. Goodchild v. Burke, 27 Wis.
2d 244, 133 N.W.2d 753 (1965), when the State and the trial court asked him
whether his confession was true; and (2) did not ask for “mandatory exclusion”
of all witnesses who were testifying at the Miranda-Goodchild
hearing. He claims that his
postconviction lawyer was ineffective because he did not challenge the trial
lawyer’s ineffectiveness.We affirm.

I.

¶2In 1996, Stream shot and killed Lucian Agnello’s foster
father, Theodore Agnello, pursuant to Lucian Agnello’s and Stream’s joint plan.
See
Stream, No. 1997AP318-CR,
unpublished slip op at *1; State v. Agnello, 226 Wis. 2d
164, 170, 593 N.W.2d 427, 429 (1999). Both
confessed and were charged with first-degree intentional homicide as party to a
crime.Both sought to suppress their
confessions.The trial court held a
combined Miranda-Goodchild hearing.During that hearing, the State and the trial court asked Stream if his
confession was true, and his lawyer did not object:

Q.What’s contained in the document is the
truth; is that correct?

A.That’s what the police wrote down, yes.

Q.It’s what you told the police; is that
correct?

A.Some of it, yes.

Q.Well, what isn’t?

A.Can I read the whole thing?

Q.Sure.

A.The first part where my signature is.

Q.Yes.

A.Where it says-- The whole first
paragraph that I signed where it says that I voluntarily made the statement
without a lawyer present.

Q.Let’s try to make going through this a
little quicker.The substance of the
statement as to what happened is true because you were trying to be honest with
the police; is that correct?

A.I was trying to be honest with the
police, yes.

Q.And the fact when you told them that you
had killed Mr. Agnello, that part was the truth; is that correct?

A.That’s what they wrote down in the
statement, yes.

Q.You’re going to have to listen to my
question, okay.The fact, the part when
you told them that you had killed Mr. Agnello, that was a true statement; is
that correct?

A.That’s what they wrote down.I don’t know.

[Prosecutor]: I would ask that he be instructed to
answer the question.

THE COURT: You need to answer the question, Mr.
Stream.

A.Yes, it is a true statement.

[Prosecutor]: And the basic substance of the
statement is true as to how it happened; is that correct?

A.No, it isn’t.

Q.But the fact is you were-- When the officer wrote down that you were the
person that killed Mr. Agnello, that’s the truth; is that right?

A.That’s what he wrote down, yes.

Q.And that’s what happened; is that
correct?

A.That’s not what happened.

THE COURT: Is that a truth or is that a lie, Mr.
Stream, what you told to the police?

A.The stuff I told them on the statement?

THE COURT: Is that a truth? Is that the truth or a lie?

A.That’s the truth.

¶3Not only did Stream’s lawyer not object to this line of
questioning, but asked in follow-up questioning:

Q.You’re indicating that the statement is
true.Are you referring that that’s what
you told the Detective is true?

A.This is what I told the Detective, yes.

Q.So you told-- You actually told the
Detective that you did the shooting?

A.Yes.

Q.And that’s what you’re testifying in
court today that that’s what you told the detective at that time.

A.That’s what I told the detective at the
time, yes.

THE COURT: Well, did you tell them the truth or did
you tell them a lie, Mr. Stream, at the time you told them that?

A.I told them the truth.

¶4During the hearing, the State asked Agnello similar
truthfulness-of-the-confession questions.Agnello’s lawyer, however, objected.

¶5At the end of the hearing, the trial court denied both
Stream’s and Agnello’s motions to suppress their statements.As to Stream, the trial court reasoned:

As far as Mr. Stream’s
statement is concerned, the issues that I have to identify according to what
was testified to here today are, number one, whether Mr. Stream in fact
requested a lawyer at any point during his contact with the police and whether
his will was somehow overborn by the police tactics in this case.

As to the first issue, again,
it comes down to credibility.And here I
find it absolutely incredible that the defendant Mr. Stream would have signed
the waivers that he signed, acknowledging that he was fully molina [sic] in waiving his constitutional
rights and agreeing to speak without a lawyer.I find it absolutely incredible that he would sign that without that having
been the case and without that having been true.And I find it incredible to me that he would
have made some requests for a lawyer that would have been dishonored by the
police.

….

As far as the voluntariness of
the statement is concerned, there is very little in this record to support the
defense argument that Mr. Stream’s statement was involuntary, over and above
the fact that he had never been subjected to a police interrogation
before.He is differently situated than
Mr. Agnello in that regard.He doesn’t
have the same lengthy history with the criminal justice system.

There is nothing to suggest
that his will was overborn, and I find nothing in what was testified to here
today to lead me to believe that the statement was coerced out of him by some
improper police tactic.And therefore, I
will find beyond a reasonable doubt under the totality of the circumstances
that the statement made by the defendant, Mr. Stream, to the police was a
voluntary statement uncoerced by the police and is therefore admissible in the
case in chief.

After the trial court denied
the suppression motions, Agnello pled guilty and appealed. We affirmed, see State v. Agnello,No.
1996AP3406-CR, unpublished slip op at *1 (Wis. Ct. App. March 10, 1998), but
the supreme court reversed, ruling that the State “improperly inquired into the
truthfulness of Agnello’s confession,” and the “error was prejudicial” because
“the circuit court relied on Agnello’s answers to the improper questions” to
find the confession voluntary.Agnello,
226 Wis. 2d at 178, 182, 593 N.W.2d at 433, 434. Of special significance here, Agnello
held that the issue was preserved by Agnello’s lawyer’s objection.Id.,
226 Wis. 2d
at 168, 593 N.W.2d at 428.

¶7Stream argues that his postconviction lawyer was ineffective
because the lawyer did not raise the issue of his trial lawyer’s
ineffectiveness.Stream claims his trial
lawyer gave him ineffective assistance because the lawyer:(1) did not object to the
truthfulness-of-the-confession questions asked at the Miranda-Goodchild hearing,
as had Agnello’s lawyer; and (2) did not ask for “mandatory exclusion” of all
witnesses at the hearing.

¶8In order to show constitutionally ineffective representation,
Stream must show:(1) deficient
representation; and (2) resulting prejudice.See Strickland v. Washington, 466 U.S.
668, 687 (1984).To prove deficient
representation, he must point to specific acts or omissions by his lawyer that
are “outside the wide range of professionally competent assistance,” seeid., 466 U.S. at
690, and to prove resulting prejudice, he must show that his lawyer’s
errors were so serious that he was deprived of a fair trial and reliable
outcome, seeid., 466 U.S. at
687.We do not need to
address both Strickland aspects if a defendant does not make a sufficient
showing on either one. See Id., 466 U.S. at
697.

¶9The circuit court must hold an evidentiary hearing on an
ineffective-assistance claim only if the defendant “‘alleges sufficient
material facts that, if true, would entitle the defendant to relief.’” State
v. Love, 2005 WI 116, ¶26, 284 Wis. 2d 111, 123, 700 N.W.2d 62,
68 (quoted source omitted). If
the postconviction motion does not assert sufficient facts, or presents only
conclusory allegations, or if the Record conclusively demonstrates that the
defendant is not entitled to relief, the circuit court may deny the claim
without a hearing. Ibid.We review de
novo whether a defendant is entitled to an evidentiary hearing. State
v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50, 53 (1996).

A.Truthfulness-of-confession questions.

¶10Stream claims that his trial lawyer gave him ineffective
assistance because he did not object to the truthfulness-of-the-confession
questions asked at the Miranda-Goodchild hearing. He argues that it is well-established law that
the truthfulness of a confession is not relevant to whether the confession was
voluntary.See Jackson v. Denno,
378 U.S. 368, 376–377 (1964) (“[V]oluntariness” must be determined
“uninfluenced by the truth or falsity of the confession.”); Agnello,
226 Wis. 2d at 174, 593 N.W.2d at 431 (“It is well settled constitutional law
that the truthfulness of a confession can play no role in determining whether
that confession was voluntarily given.”).

¶11As we have seen, a defendant claiming that his or her lawyer
was constitutionally ineffective must show prejudice: that he or she was deprived of a fair trial
and reliable outcome. See alsoState v. Carprue, 2004 WI
111, ¶47, 274 Wis. 2d 656, 678, 683 N.W.2d 31, 41–42 (in the absence of an
objection, we address issues under the ineffective-assistance-of-counsel
rubric); Kimmelman v. Morrison, 477 U.S. 365, 375 (1986) (unobjected-to
error must be analyzed under ineffective-assistance-of-counsel standards, even
when error is of constitutional dimension).

¶12In an attempt to prove prejudice, Stream points to Agnello’s
assertion that the trial court’s overruling of Agnello’s objection was “hardly
harmless, as the prosecutor’s irrelevant line of questioning played a sizable
role in the circuit court’s ruling.”See Agnello,226 Wis. 2d at 178, 593 N.W.2d at 433. But, where an objection is preserved, the
State must show that the trial court’s error was harmless beyond a reasonable
doubt. Ibid. (“[T]he State, as the beneficiary of
the error, bears the burden of proving beyond a reasonable doubt that the error
was harmless.”). Thus, Agnello’s
later comment that the trial court’s error in overruling Agnello’s objection “was
prejudicial,” see id., 226 Wis.
2d at 182, 593 N.W.2d at 434, has no application here, where, as we have seen,
Stream has the burden of showing prejudice—that is, that his lawyer’s failure
to object made the outcome of the proceeding “unreliable.” Stream has not shown that the trial court
relied on the confession’s truth, rather than what the police did or did not do
bearing on the voluntariness issue. This
is clear from the trial court’s ruling that we quote above, andStream’s
reliance on the trial court’s statement “I find it absolutely incredible that
he would sign that without that having been the case and without that having
been true” is unavailing because the trial court made that statement in
connection with whether Stream waived his Miranda rights, not whether his confession was “voluntary.” Thus Agnello is inapposite.

B.Sequestration.

¶13Stream also argues his lawyer gave him ineffective assistance
because the lawyer did not ask for “mandatory exclusion” of all the witnesses
who testified at the Miranda-Goodchild hearing.Stream fails to prove deficient performance
or prejudice.

¶14At the start of the Miranda-Goodchild hearing, the State
asked the trial court “for sequestration of witnesses.” See Wis. Stat. Rule 906.15.The trial court responded:“I will sequester all witnesses in the case.”
Thus, there was no need for Stream’s
lawyer to ask the court for what it had just ordered.

¶15Stream’s more specific issue is that the State told the trial
court: “Detective Temp is the first witness so I would ask that he remain in
the courtroom.I would ask that
Detective Lewandowski assist me at the counsel table.”Stream’s lawyer did not object.Stream claims that having Lewandowski hear
Temp’s testimony caused prejudice because Lewandowski could adjust his
testimony to match Temp’s.We disagree.

¶16First, sequestration does not apply to “[a]n officer or
employee of a party which is not a natural person designated as its
representative by its attorney.” Wis. Stat. Rule 906.15(2)(b).The State is “a party which is not a natural
person” and Lewandowski is an “officer or employee” of the State and was
“designated” by the prosecutor as “its representative.” Thus, the trial court would have been within
the law had it overruled Stream’s objection to Detective Lewandowski’s
presence.

¶17Second, as the circuit court found, the two detectives
testified primarily about different subject matters:

●“Detective Temp testified primarily
about his interaction with Lucian Agnello during the interrogation process,
including obtaining information about the involvement of DouglasStream
in the homicide.”

●“Detective Lewandowski testified
primarily about locating Douglas Stream’s house and going there with a search
warrant.”

¶18Stream points out an overlap in their testimony—both detectives
described Stream’s house as a “Polish flat.”Stream has failed to show how the overlapping “Polish flat” descriptions
prejudiced him.

¶19Stream has not shown that his trial lawyer gave him ineffective
assistance.Accordingly, it logically
follows that his postconviction lawyer did not either.